transgender/nonbinary personhood and access to human rights

Disclaimer: For the purposes of the following essay, I am including nonbinary people under the transgender umbrella, while acknowledging that not all nonbinary people use the transgender label.

Gender as a Social Construct, Not a Biological Reality

Many of us in Western societies grow up with the very simplistic notion that there are two genders in this world, male and female, and that all people must be one or the other. When we get a little older and learn about biology, this notion is reinforced by the “lesson” that there are only two sexes, male and female, that correspond to the two genders we were taught as children. However, this is not quite true. While for most of humans (and most animals) our reproductive organs and secondary sex characteristics are informed by our sex chromosomes, of which most humans have either one of two options, XX or XY, biology is, as always, much weirder and more interesting than we think. While possessing XX sex chromosomes does most often mean an individual will develop in a way we consider “typically female” and possessing XY sex chromosomes will often mean an individual will develop in a way we consider “typically male,” there are many different naturally occurring situations in which people develop differently. Furthermore, XX and XY are not the only two options. Put simply, the argument that “gender equals sex and sex is always clearly defined as male or female” could not be farther from the truth.

Now that we have uncoupled biological sex from the simplistic male-female binary, we must uncouple biological sex from gender. While biological sex describes a person’s reproductive organs and secondary sexual characteristics (of which many people have a mix of typically male and female), gender describes how one presents, is perceived, and feels about themselves. Gender is a social construct, one that evolves over time and varies greatly depending on context, location, and culture (Urquhart, 2019). What might be considered a “manly” trait in one society might very well be considered a feminine trait in another. For example, the color pink was considered for many years a “strong, masculine” color, and was not uncommonly used for dressing baby boys, however, in the 1930s and 1940s that began to change, with the Nazis’ use of the pink triangle badge to indicate a man was gay. Clearly, a strong negative social indicator and horrific violence against gay men changed society’s collective feelings about something as innocuous as a color.

Additionally, Western societies are not the only ones in the world. Many Indigenous American cultures had a third gender, one that was somehow outside the male-female binary or encompassed aspects of them both. If one cares to look, people living outside of the male-female binary, or moving between them, have always existed and have left their mark on history. Transgender and nonbinary people are nothing “new,” but we may seem that way because of how markedly our very existence ruptures our society’s rigid binary systems, systems that were mostly or partially put in place to uphold an unequal distribution of power among genders (Hook, 2010).

Source: www.pbs.org/independentlens/content/two-spirits_map-html/

It would have to be the subject of a much longer paper, but many of our societal beliefs and institutions based around gender originated in the early capitalist attempt to subjugate child-bearing people for their unpaid labor and to commodify their wombs, their ability to create more sources of unpaid labor (Federici, 2004). There need not be such clearly defined gender roles if power is not distributed unequally between them.

In a world that seeks to put human beings in one of two clearly-defined boxes, transgender and nonbinary people have nowhere to go. There are no systems and pathways in place for our existence. Gender and sex identifiers have permeated every aspect of our lives and appear on documents on which they are entirely unnecessary. For example, legal identification should need nothing more than a picture, a name, and a birthday. Whether a person possesses XX or XY chromosomes tells you absolutely nothing about what they currently look like or how they know to be true about themselves.

Accessing Human Rights

For a nonbinary person living in the contemporary United States, there is no way to be safely and securely “out,” without accepting some risk to oneself, or to even have accurate legal identification documents. By this I mean, we must always choose, M or F. Neither gender may be accurate, and yet we will have to choose, and run the risk that if we choose the wrong one, we will somehow be “uncovered” as pretending or other. A world that is hypercritical of how people perform their perceived or “approved” gender is one that is dangerous to all of us, cis and trans.

In North Carolina, at the height of the “bathroom bills” fervor, many cisgendered people were on “high-alert” for the dangerous “men in dresses” they were told would be seeking access to women’s private spaces like restrooms and locker-rooms. Trans women were obviously at extreme risk due to this heightened scrutiny, but so too were butch women, gender nonconforming women, and women whose own biology meant they grew facial hair – essentially, anyone who did not perform and conform perfectly to some stranger’s ideal of femininity could be at risk of bodily harm in these situations.

Knowing the risk associated with being out and trans, trans people are four times more likely to face violence and assault than cisgender people (Flores et al, 2020), some people may choose to remain in the closet, or present themselves in a way not entirely true to themselves in order to “pass” as another gender. A person who decides to stay in the closet chooses safety but sacrifices their truth and must face varying degrees of discomfort, anxiety, depression, and dysphoria. Meanwhile someone who chooses to transition may overemphasize the characteristics of their “new” gender in order to “pass” as cisgender.

The very decision to transition is not an instant or clear-cut “fix” as it may appear, even for those who are on the gender binary. If a person is assigned female at birth and knows he is a man and decides to transition physically, there will always be a period in which he is physically “in-between.” He does not wake up in his naturally-occurring body, decide to transition, go to sleep and wake up the next day in a “fully-transitioned” cis-male-appearing body. It is simply not how human bodies function, even with external medical interventions like surgery and hormone therapy. During this time period, he is extra vulnerable, in that he is clearly “neither” and his gender will be called into question by those around him nearly constantly, again heightening his risk or physical violence and emotional turmoil.

If we do take gender at face value, to be determined in part by how a person presents and how others perceive him, our hypothetical transman was at one point in time, “female” (even if he never felt that way himself) and is now “male.” He has changed himself, uncoupling his experience of gender from his physical body, by physically changing his body. Alternatively, transgender or nonbinary people who choose not (or do not or have not) to transition, have already uncoupled gender from physical biology, in that they are the gender they are (or aren’t, for agender people) whether or not they change anything about their physical form, because gender is in your heart and mind, and is greatly influenced by the society you live in.